Your Right to Know columnsWisconsin Freedom of Information Council: Safeguarding access state and local government and defending freedom of the press since 1978.http://wisfoic.org/index.php?option=com_content&view=category&id=63&Itemid=55
Tue, 14 Aug 2018 21:04:16 +0000Joomla! 1.5 - Open Source Content Managementen-gbAugust: Finalists’ names should be made public http://wisfoic.org/index.php?option=com_content&view=article&id=448:august-finalists-names-should-be-made-public-&catid=63:2018-columns&Itemid=55
http://wisfoic.org/index.php?option=com_content&view=article&id=448:august-finalists-names-should-be-made-public-&catid=63:2018-columns&Itemid=55

When the Oconto Police and Fire Commission said in April that it had interviewed two finalists for the open position of chief of police, Kent Tempus of the Oconto County Reporter asked who the finalists were.

It was a simple request, made under the part of Wisconsin’s open records law that requires the naming of final candidates for public offices.

The answer should have been simple, too – but it wasn’t.

City Administrator Sara Perrizo not only refused to name either candidate but said the commission had already voted to hire one of them. She said no announcement would be made until the City Council approved the hiring, two weeks later.

In an email, Oconto City Attorney Frank Calvert had the nerve to write, “I am not aware that the Police & Fire Commission has declared anyone, at this point, to be a Final Candidate as regards the Police Chief position.”

Think about that for a second. It means the attorney didn’t consider the candidate that the commission recommended for hire to be a final candidate.

At that point, the paper and its parent organization, USA TODAY NETWORK-Wisconsin, hired an attorney to intervene. After a week of back and forth, Perrizo identified the candidate recommended for hire, but still refused to identify the other candidate. The media organizations had enough and sued. Hours after the suit was filed, the city released the name of the other candidate.

Having spent thousands of dollars on legal fees to right the wrong, the media organizations sought reimbursement of their legal costs, as the records law allows. In the end, the city’s insurance company agreed to pay $3,000 – less than half of the fee total.

None of it needed to happen. The law regarding finalists for top positions is clear. And it was clearly violated.

The final candidates provision applies to all local and state public positions; the University of Wisconsin System was largely exempted from the law in 2015. Its purpose is to ensure that the public knows who its government is considering for key positions — and what kind of baggage they might bring to the job.

Consider the three finalists named in July for the position of city administrator in Rhinelander. One of them, former Weston village administrator Dan Guild, had been suspended for 30 days by the village board for what the board called a breach of his employment contract. Another finalist – St. John, Indiana, town manager Steve Kil – was charged in 2015 with stealing yard signs that called for his firing.

Whenever there are at least five applicants for a public position, the law says the names of “each of the five applicants who are considered the most qualified” should be released. Yet Oconto ended up naming only the two finalists it seriously considered. In a similar situation in 2004, the state attorney general concluded that a school district should have released the names of all candidates interviewed for a given job.

Another problem is that the law doesn’t specify when the finalists’ names must be released. As a result, some authorities have tried to dodge its intent by not releasing the names until after a selection is made. The Legislature should close this loophole.

The bottom line is that the finalists law exists for a reason: the public interest in key hiring decisions. Yet it’s a law that is routinely disregarded.

The public deserves better.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. Larry Gallup is a council member and the consumer experience director for USA TODAY NETWORK-Wisconsin.

A few weeks back, while looking into a court case in Waukesha County, I went to the court’s website seeking contact information. There were a few phone numbers but no email addresses. So I called one of the numbers and asked for the judge’s email address.

The judge’s office wouldn’t give it to me.

Given that judges and other court employees use a government email address, I decided to file an open records request, seeking the email addresses of everyone who uses the domain address wicourts.gov, which is administered by the court system.

The response I received from Randy Koschnick, the director of state courts, was chilling: “The Wisconsin Supreme Court intends to decide whether the state court system is subject to the open records law,” he informed me. “The issue is currently under consideration by the Court.”

This was certainly news to me. In response to my follow-up query, Koschnick said there was no pending case regarding this matter, but that the issue has risen recently “so the court has determined that it is appropriate for the court to address it.”

No one I contacted seemed to be aware that the state’s highest court was, on its own initiative, deciding if it could essentially exempt itself from state law, much as the Wisconsin state Legislature tried to do in 2015. That effort was abandoned after a huge public outcry.

The state’s open records law explicitly lists “any court of law” as among the entities that are subject to its provisions. The only way the courts could decide they weren’t covered, it seems, would be through a separation of powers argument — essentially, that the state Legislature has no authority to tell the courts what to do.

If that’s the case, the courts could theoretically exempt themselves from any other law.

My efforts to seek clarification and my request to speak to Chief Justice Patience Roggensack have been ignored. But another court official, spokesman Tom Sheehan, was quoted as saying the court is only considering whether the email addresses have to be released. He cited a “substantial risk" of litigants improperly communicating with judges, which could lead to the need for judges to disqualify themselves.

The email issue is a red herring. If an email is on an inappropriate topic, it can be ignored the same as the judge can ignore any other communication. Obviously, some court officials would prefer to remain inaccessible. Probably so would a lot of mayors and state lawmakers. But this is Wisconsin, where we supposedly believe in open government.

Some judges routinely use their emails, and in most cases their email addresses are easy to figure out. In Waukesha County, all you have to do is put a period between the first and last name and add @ wicourts.gov and voila! If the court really felt that access to email addresses is a threat to justice, why hasn’t it banned judges from making their email addresses public?

For the state’s highest court to exempt itself from the state law on access to records would be an abusive power grab. If that’s what's being considered, Roggensack and the other justices first need to explain themselves.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. Mark Belling is a radio talk-show host in Milwaukee.

The law, enacted in 1983, asserts that no state or local government office may deny a request because the person making it “is unwilling to be identified or to state the purpose of the request.”

This is an important principle, because access to public information should not be limited to people whose motives have been deemed pure. In fact, citizens and political parties often use the law to scrutinize public officials and political opponents. That’s how it should be.

A few years back, the primary author of Wisconsin’s open records law, former state Sen. Lynn Adelman, now a federal judge, told a group of open government advocates that he was prepared to kill the entire bill rather than accept an amendment that would have removed this ability to make anonymous requests. Public records, he felt, needed to be public to all.

Over the years, this ideal has sustained damage. In 1996, the state Legislature limited the ability of incarcerated persons to make records requests. In 2005, the Wisconsin Supreme Court ruled that an alleged sexual harasser could be denied access to unredacted records regarding complaints against him. In 2014, a state appeals court backed up a school district that refused to provide records regarding one of its employees to a man with a history of violence against her.

These are tough cases; inmates, harassers and abusers are not sympathetic figures. But we must be careful about denying access to records based on who is asking.

In late 2016, the Wisconsin Supreme Court upheld a state agency’s decision to deny a request for training videos, ostensibly to protect sensitive law enforcement techniques. The decision’s author, Justice Rebecca Bradley, noted in passing that the records requester, the Democratic Party of Wisconsin, had a “partisan purpose” in making its request.

That’s troubling, because the requester’s purpose shouldn’t matter—and, it can be argued, still does not, despite Bradley’s careless wording. If Democrats can be denied access because they are partisan, so can Republicans. Or anyone.

Earlier this year, the state Supreme Court ruled against a labor union that sought records to help secure votes in a recertification election. The court’s conservative majority accepted arguments, unsubstantiated by any evidence, that the union might use these records to harass. Justice Ann Walsh Bradley, writing in dissent, called this a “concocted concern.”

This case involved a particular set of circumstances, and its reach should not apply to other requests. But we must remain wary about taking any requester’s identity or motives into account. That provides a too-easy out for officials looking for excuses to keep public information under wraps.

To quote from the law, “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” All persons — not just those the government likes.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Bill Lueders, managing editor of The Progressive, is is the group’s president.

Should media outlets sue to challenge those redactions, history suggests they’ll have a good shot at prevailing.

We are the authors of a new study examining public records litigation involving the University of Wisconsin System over the past 40 years. Our study didn’t just look at appellate-court decisions available online. Instead, we traveled to courthouses across Wisconsin to pore through thousands of pages in trial-court files that are not publicly available on the internet.

We analyzed 34 lawsuits in which a UW entity was sued under the public records law between 1978 and 2017. Of these, 18 originated with requests from news organizations, and in every one of these cases, the core records were released, even if some information was withheld.

For example, a 2011 lawsuit by the Appleton Post-Crescent led to the disclosure of documents regarding the dean of UW-Fox Valley, who abruptly retired after he was accused of threatening students and staff on an overseas trip. And in 2009, the Milwaukee Journal Sentinel sued successfully to obtain comments from the UW medical school faculty about a conflict-of-interest policy.

Advocacy organizations were also successful in suing the UW for public records. These included groups critical of affirmative action, skeptical of the quality of teacher training in university education programs, and concerned about possible animal abuse in research.

In contrast, students or employees who sued for purely personal reasons rarely gained access to the information they sought.

Half of the lawsuits involved the UW-Madison, while the remaining cases involved other campuses around the state. Two lawsuits sought records from multiple campuses.

Most of the cases involved requesters who sued after the university refused to release records. A handful were brought by employees seeking to block the release of records about them; those individuals always lost.

Much of the debate over records from institutions of higher education focuses on fears that transparency may chill academic freedom, and openness may deter candidates from applying for high-level jobs.

But we found no public records lawsuits seeking the identities of applicants for university positions after the early 1990s, while only a small number of cases featured academic freedom arguments for keeping records secret. Instead, most lawsuits sought information about alleged misconduct or suspected ethical lapses by university employees.

Our research also highlights the vital role the press plays in holding the UW accountable. Journalists around Wisconsin often use public records to shed light on problems in the UW System. But the precarious economic position of legacy news organizations makes them less likely to go to court to assert access-to-information claims.

Meanwhile, our research found that partisan, activist organizations began appearing as plaintiffs in public records actions against the university in recent years, regularly winning cases. Like journalists, activists seek to hold the university accountable, but partisan accountability may be fundamentally different from non-partisan accountability in ways that have yet to be examined.

Our study will be published in the Journal of College and University Law later this year.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. Council member Jonathan Anderson is a reporter for USA TODAY NETWORK-Wisconsin. David Pritchard is a professor of journalism at the University of Wisconsin-Milwaukee.

Wisconsin’s open government laws were meant to strengthen our democracy by ensuring an informed electorate. But, sometimes, transparency is about more than democracy—it is about human health, with serious consequences when transparency fails.

Earlier this year, the Milwaukee Journal Sentinel reported that the city of Milwaukee had failed to alert thousands of families whose children had blood tests indicating elevated lead levels. Lead from water pipes and old paint is a significant public health risk in Milwaukee and elsewhere, causing cognitive damage and other problems.

It later emerged that officials in Milwaukee had imposed a gag order on health department employees. It barred them from having contacts with elected officials without prior approval. Said one alder, “This policy is a disgrace and it likely restricted workers from coming forward sooner.” The policy has since been rescinded.

Sometimes, requests for health information and data are simply stonewalled, for no good reason. The Milwaukee Public School district failed to respond for weeks to questions about whether it tested drinking water fountains for lead. It later reported that 183 fountains had high lead levels.

And when La Crosse County learned about high levels of nitrate in drinking water wells near a large hog operation, it worked for months to get groundwater data from the Department of Natural Resources. Eventually, the county had to file open records requests, which took months to fulfill.

“If the state is keeping data on groundwater, why isn’t it sharing it willingly with its own counties, its own people, in the spirit of public health?” asked the La Crosse Tribune in an exasperated editorial. “County health officials shouldn’t be required to become experts on public-records law in order to find out whether there’s a health hazard in their own county.”

The DNR also came under fire last year for “muzzling” its scientists, preventing them from providing expert input on natural resource and other issues. Since 2011, DNR employees do not regularly testify at legislative hearings on matters within the agency’s purview.

Last year, a DNR scientist had to testify on his own time at a legislative hearing to roll back air-pollution standards. Other legislation, like a bill changing rules for managing chronic wasting disease in the state’s deer herd, had no DNR input at all.

Many public employees take seriously their duty to inform decision-makers and the public about ways to prevent health problems and lower risk. Yet some are unjustly penalized for reporting problems and sharing information. Multiple workers at the Veterans Administration hospital in Tomah, Wisconsin, were retaliated against for reporting the overprescription of opioids and other problems.

Government agencies should always be cognizant of their duties under transparency laws. But these duties gain extra import when government holds information that can help protect public health and safety.

Taxpayers pay for the expertise of government scientists and the data they collect and generate. While some discretion may be warranted in how it is released, this information should be accessible to the public. No gag order, stonewall, or muzzle should prevent that.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Christa Westerberg, an attorney at Pines Bach law firm in Madison, is the group’s co-vice president.

In my career as a journalist, I have encountered many public officials who respect government openness and transparency.

There was the state records custodian who turned over dozens of her boss’s embarrassing emails after telling him that keeping them secret would violate the law. And the university staffers who pointed me to public information the school tried to keep out of the public eye. And the local elected official who told me what happened in a closed session she thought may have been illegally closed.

As we approach this year’s annual celebration of Sunshine Week, March 11-17, it’s worth recalling times when people entrusted with our tax dollars have stood up for our right to know. But too often government agencies and elected officials pledge fidelity to openness while acting to keep us in the dark. Some recent examples:

The Madison Police Department failed, for more than a year, to deliver records to the Madison weekly Isthmus—even after the newspaper paid the department its requested fee. The liberal weekly and the conservative Wisconsin Institute for Law and Liberty teamed up to sue the department for dragging its feet, and the records were belatedly released. Wisconsin law says records must be provided “as soon as practicable and without delay” but doesn’t spell out how long is too long. More than a year is too long.

State lawmakers, relying on advice from the Assembly and Senate chief clerks, have refused to turn over electronic copies of emails, saying they will provide only printed copies. A judge has already ruled against one lawmaker, a Republican, who was sued over this practice, while another lawmaker, a Democrat, has just been sued.

The state’s bipartisan legislative leadership has denied requests for records related to allegations of sexual harassment in the Legislature on grounds that secrecy protects the victims. Of course, they could just black out victims’ names and still let the public judge the credibility of the allegations and the adequacy of the response, but have refused.

The Madison school district has been less than forthcoming about disturbing allegations against teachers. In one case, a middle school teacher was dismissed after a dispute with a student, but district officials refused to share details. It took a blog post by the Madison police chief to reveal that the teacher allegedly slapped the student. In another case, a high school has refused to share details on student allegations that led to a teacher’s sudden retirement —including whether its investigation substantiated the allegations.

Officials in Sauk County have taken numerous steps to block the public’s right to know. The local newspaper has filed a complaint over vague meeting agenda language that failed to make clear what was going to be discussed. The county also withheld information about health insurance proposals until after a committee decided which option to pick. And it skirted a law requiring the disclosure of finalists for key public jobs, for which it is now being sued.

Taken together, these cases provide a disturbing reminder that the public’s right to know is under constant attack—and that defending it requires constant vigilance.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. Council member Mark Pitsch is an assistant city editor at the Wisconsin State Journal and president of the Madison chapter of the Society of Professional Journalists.

Computers have made examining government records easier than ever. The smallest townships across Wisconsin post the meeting agendas and minutes online. And websites for government agencies at all levels contain an enormous amount of other information.

Electronic records are also available on request. Say you want to see a skate-park-feasibility study you’ve heard about. You can request this record from the agency that keeps it, and receive it via email. The whole process can be completed in minutes.

In the past, such a request might have meant days of waiting for a paper copy with a per-page reproduction cost, as well as postage. A requester might have to first send a check to cover these costs.

Fulfilling requests in a digital fashion benefits both hard-working public employees and the curious public. It saves time and effort. The cost of reproduction is negligible.

There are other advantages in having a record in electronic form. Reading a 50-page paper study takes a long time, but it takes only seconds to search and find a particular phrase within a document on your computer.

And sometimes the paper copy doesn’t tell the whole story. The term “metadata” describes everything in an electronic document that doesn’t appear on a printed page. This may include, say, the name of the file, such as “Secret Meeting Agenda.docx.” Most files also contain the author’s name and information on when it was created and last modified.

In July 2016, the UW System officials refused to release their annual budget proposal, as they had in past years, claiming it had not been finalized. The proposal wasn’t distributed until 90 minutes before the Board of Regents met to take it up, eliminating any chance for public scrutiny. The metadata revealed that no changes had been made to this allegedly unfinished document since six days before the meeting.

Last month a Dane County judge ruled that Rep. Scott Krug (R-Nekoosa) should have supplied more than a thousand emails in digital form because the requester specifically asked for them in that format. Legislative staff had offered more than 1,500 pages of paper printouts for in-person review at an Assembly office, with copies available at 15 cents per page.

The requester who brought the suit was Bill Lueders, president of the Wisconsin Freedom of Information Council. “The records were virtually unusable in the provided hard copy because they could not be searched,” the lawsuit said.

Lueders requested emails that Krug received from constituents on proposed changes to the state’s water laws. To properly fulfill this request, Krug’s office likely located the responsive emails using the search function within their email program, looking for particular phrases and bill numbers.

Shouldn’t we all have the benefit of this convenience? Providing records in piles of paper makes them less usable and requires requesters to physically travel to where the records are located to avoid paying for hundreds and even thousands of pages of copies. The Legislature’s policy discourages inquiry and prevents an easy examination of public information.

If you want records in electronic form, ask for them that way. And that’s how responsible officials will provide them—with or without the intervention of the courts.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. John Foust is a Council member and a computer consultant in Jefferson.

A resolution that passed 96-1 affirms that the Assembly “remains committed to our state’s open record and open government laws and policies, and will take all necessary steps to ensure that these laws and policies are preserved without modification or degradation.”

Fast-forward two-and-a-half years: Has the Assembly kept its promise? Here are some recent events to consider.

Among other reasons for withholding the documents, the clerks claimed disclosure would have a chilling effect on employees’ use of the Legislature’s internal complaint process. This position was backed by Assembly Speaker Robin Vos (R-Rochester) and Assembly Minority Leader Gordon Hintz (D-Oshkosh), who argued that releasing records in such cases could reveal the names of victims and witnesses, even when identifying information has been blacked out.

Viewed in the best possible light, these are not unreasonable concerns. But courts in Wisconsin have repeatedly affirmed that disclosing records about alleged misconduct by public officials and employees serves the public interest. And judges have found that victims and witnesses can be protected by redacting identifying information while disclosing the substance of what happened.

That same month, the Assembly passed a bill that blocks release of most police body camera footage. Only recordings depicting deaths, injuries, searches and arrests would be subject to release.

The measure further requires law enforcement agencies to deny requests for video recorded in places where people have a reasonable expectation of privacy, such as inside homes, unless all witnesses, victims and property owners sign a waiver consenting to the video’s disclosure.

Open government advocates, including the Wisconsin Freedom of Information Council, believe the bill unnecessarily hampers access to body camera footage, which the public is paying for. Already, the law allows police to deny release of records when the harm from disclosure outweighs the public interest.

Separately, the Assembly is considering a bill that would seal court records about people wrongfully convicted. The measure, AB 548, effectively turns the public records law on its head by requiring that records be confidential unless a judge finds there is an overriding public interest in access to the documents.

While the aim of the bill is commendable—to help those exonerated rebuild their lives—sealing off all records about wrongful convictions goes too far. Access to such information is essential if the public has any chance at holding prosecutors, judges and the justice system accountable for wrongful prosecutions.

So, to review: The Legislature has refused to release records about personnel and sexual harassment investigations, advanced a bill to restrict access to body cam footage, and is considering legislation to seal off documents about wrongful convictions.

Has the Assembly kept its 2015 commitment to ensure the public records law is “preserved without modification or degradation?” You be the judge.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council(www.wisfoic.org), a group dedicated to open government. Council member Jonathan Anderson is a reporter for USA TODAY NETWORK-Wisconsin.